Law v Pace Micro Technology Plc

Under the Disability Discrimination Act 1995, the justification defence in section 5(4) cannot justify a failure to make reasonable adjustments under section 6 by relying on matters relevant to whether the adjustment was reasonable and the duty was breached. A tribunal that finds a part-time adjustment reasonable must not revisit those matters as justification. Where compliance with the adjustment duty would have avoided discriminatory dismissal, the dismissal is also discriminatory. A respondent cannot introduce a new issue on appeal by cross-appeal without permission. Inadequate reasons may, sparingly, be remitted to the same tribunal for amplification.

Mr Law, a disabled employee, was dismissed for redundancy after Pace refused to offer him a Health and Safety Officer role on a part-time basis. The employment tribunal found that the adjustment was reasonable and that Pace had failed in its section 6 duty, but accepted justification under section 5(4) and rejected the disability-related dismissal claim. The Employment Appeal Tribunal dismissed his appeal on 29 July 2003.

While the appeal was pending, this court decided Collins v Royal National Theatre [2004] EWCA Civ 144. Pace accepted that the appeal had to succeed. The remaining issues were whether the court should order a remedies hearing or remit the merits, and whether permission should be granted to challenge Collins in the House of Lords.

Lord Justice Mummery delivered the judgment, with which Lord Justice Dyson and Lord Justice Potter agreed.

1. Appeal allowed. The employment tribunal had correctly found that offering Mr Law the Health and Safety Officer role on a part-time basis, potentially on trial, was a reasonable adjustment under section 6. It then erred in treating Pace’s need for continuity and full-time availability as justification for failing to make that adjustment. Those matters were relevant to whether the section 6 duty had been breached. Under Collins v Royal National Theatre [2004] EWCA Civ 144, they could not also justify the breach under section 5(4).
2. The justification test under section 5(4) differs from the test under section 5(3) for less favourable treatment. The tribunal therefore wrongly applied the approach associated with Jones v The Post Office [2001] IRLR 384 to the failure-to-adjust claim.
3. Applying section 5(5), the tribunal ought to have held that the dismissal would not have been justified if Pace had complied with section 6 by offering the part-time role. The dismissal was consequently also an act of discrimination.
4. The knowledge issue was relevant under section 6(6). However, Pace had not obtained permission to raise it by cross-appeal and the court would not extend time. The authorities cited on that procedural point were Harrod v Ministry of Defence [1981] ICR 8 and Riniker v University College, London [2001] EWCA Civ 597. In any event, the evidence strongly indicated that Pace had actual or constructive knowledge of the disability.
5. Had a serious concern about the absence of an express finding remained, a full rehearing would not have been ordered. The court would have considered remitting the case to the same tribunal to amplify inadequate reasons, a course permitted, though to be used sparingly, under English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409.
6. Permission to appeal to the House of Lords was refused. The section 5(4) defence was due to be removed prospectively by amending regulations, and the recent decision in Archibald v Fife Council [2004] UKHL 32 apparently treated Collins as correctly decided. The matter was directed to proceed directly to a remedies hearing in the employment tribunal.

• Court of Appeal (Civil Division): Appeal allowed. The matter was directed to proceed to a remedies hearing in the employment tribunal. Permission to appeal to the House of Lords was refused.
• Employment Appeal Tribunal: Appeal dismissed on 29 July 2003.
• Employment tribunal: Found that the part-time adjustment was reasonable and that the section 6 duty had been breached, but accepted justification under section 5(4) and rejected the disability-related dismissal claim. Extended reasons were sent on 8 August 2002.